Public Bill Committee

[Frank Cook in the Chair]

Further written evidence to be reported to the House

MH69 Annie Taylor
MH70 Dr. Helen Pearce

Clause 34

Consent to treatment

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss the following: New clause 14—Authority to treat community patients—
‘(1) The 1983 Act is amended as follows.
(2) In section 58(3) after first “patient” insert “who is liable to be detained under this Act”.
(3) After section 58 insert—
“58A Consent to treatment of community patients
(1) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—
(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or
(b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that—
(i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; and
(ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; and
(iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and
(iv) having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
(2) Where a patient who has been liable to detention under this Act has been administered medication for mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in subsection (1)(b) shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.
(3) The Secretary of State may by order vary the length of the period mentioned in subsection (2).
(4) Certification under subsection (1)(b) may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.
(5) Before giving a certificate under subsection (1)(b) the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons—
(a) at least one shall be a person who is not a registered medical practitioner; and
(b) neither shall be the patient’s responsible clinician or the approved clinician in charge of the treatment in question.
(6) In section 61(1) leave out ‘or 58(3)(b)’ and insert ‘58(3)(b), or 58A(1)(b)’.
(7) In section 61(1)(a) after ‘20(3)’ insert ‘, 20A(4)’.
(8) In section 61(3) for ‘responsible medical officer’ substitute ‘approved clinician in charge of the treatment in question’.
(9) In section 61(3), leave out ‘or 58(3)(b)’ and insert ‘58(3)(b), or 58A(1)(b)’.”.
(4) After section 62(2) insert—
“(2A) Section 62A below shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 58 where a community patient is recalled to hospital or a community treatment order is revoked and—
(a) the patient is capable of understanding the nature, purpose and likely effect of that treatment and has consented to it; or
(b) the patient is not capable of understanding the nature, purpose and likely effect of that treatment, but it is not necessary to use force against the patient in order to give the treatment.”.
(5) After section 62 (Urgent Treatment) insert—
“62A Treatment on recall of community patient or revocation of order
(1) This section applies where—
(a) a community patient is recalled to hospital under section 17E above; or
(b) a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.
(2) Subject to section 62, a patient to whom this section applies shall not be given any form of treatment to which section 58 applies without its certification under section 58(3) following that recall or revocation.”.
(6) In section 64 (supplementary provisions for Part IV) after subsection (2) insert—
“(3) In this Part of this Act, references to ‘not capable of understanding the nature, purpose and likely effects of treatment’ are to be read in accordance with the test established under section 3 of the Mental Capacity Act 2005 (c. 9).
(4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.
(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.
(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.
(7) References to a hospital include a registered establishment.”.
(7) In section 119 (practitioners approved for Part 4 and section 118)—
(a) in subsection (2)(a) for “registered establishment” substitute “hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place”,
(b) in subsection (2)(b), leave out “in that home” and insert “there”,
(c) after subsection (2) insert—
“(3) In this section, ‘establishment of any description’ shall be construed in accordance with section 4(8) of the Care Standards Act 2000.”.
(8) The Mental Capacity Act 2005 (c. 9) is amended as follows.
(9) In section 28 (Mental Health Act matters) after subsection (1) insert—
“(1A) Section 5 does not apply to an act to which section 58A of the Mental Health Act 2007 (c. ) applies.”.’.
Clause 35 stand part.

Angela Browning: It is my pleasure to open the debate. This part of the debate will be long—not only new clause 14, but clauses 34 and 35 are particularly lengthy—but I shall crystallise it. We tabled new clause 14 because there is a basic principle that the Government need to address and which relates to the prescription of treatment and the authorisation of medication by the second opinion approved doctor in advance of what might become a deteriorating situation some weeks or months later. We are concerned about that.
Clearly, the situation could be as simple as somebody refusing to take their medication at a later stage or disliking the side effects. Equally, however, there could be a very salient reason why the patient stops taking medication down the track—a physical occurrence such as a heart attack or something of that nature. It seems wrong that the criterion applied to the patient could be such that, although there might have been a change in circumstances since the initial assessment of why he or she needs a particular treatment or medication, the SOAD—the authorising doctor—may have decreed several months in advance that that treatment or medication must be given. No matter what the relevant circumstances, there would be compulsion, and the patient would be only too well aware of that. That seems wrong in principle.
Therefore, the rather lengthy new clause 14 would simplify the situation so that, when there was a significant change of circumstances, the patient would be reassessed based on those circumstances, and the piece of paper that the doctor had in his or her pocket stating what might happen down the track would not simply be dutifully applied. There would be proper consideration of the patient’s change of circumstances. That is the fundamental principle.
We think that that is helpful to the Government because it would not only encourage the application of best medical practice, but be in the patient’s interests. If the SOAD had the power to predetermine treatment two or three months before, but there had been a change in circumstances that he or she was unaware of, surely it would be in everybody’s interests for the patient to be reassessed at that point.
I suspect that the Minister may tell me that the fact that the doctor had that piece of paper in his or her pocket might encourage the patient to maintain treatment and medication, but the balancing argument is surely that the appropriateness of a treatment, whatever it may be, should be reassessed when there is a significant change in the patient’s circumstances.

Tim Boswell: Welcome to the Chair, Mr. Cook. I will briefly endorse the comments of my hon. Friend the Member for Tiverton and Honiton with two of my own. First, clearly there is difficulty throughout the process in that one wants assessments to be as contemporary as possible, but, on the other hand, they should not be vexatious either to the patient or to the examining professionals. The Minister might argue that it is not possible to keep assessing people for ever, and I think that there would be a point to that. On the other hand, I find my hon. Friend’s arguments very cogent in relation to the need to do a proper reassessment, and not to give the SOAD the opportunity to issue a blank cheque. It is good medical practice to reassess such patients, particularly if there have been changes in circumstances, and while that does not automatically preclude a continuation of the treatment, it demands a reassessment of it.
I shall make a further point. Even among professionals, one imagines that there may be some difficulty in dealing with legislation of this length and complexity, although it eventually distils to good practice. The Minister should not be frightened about the complexity of the new clause, since she is happy to present to the Committee schedule 6, an extremely complex and lengthy working out of difficulties about Bournewood and the Mental Capacity Act 2005. Speaking as a non-lawyer, I think that it is sometimes necessary to write at great length in order to anticipate and codify the circumstances under which certain things should happen by way of good practice.

Angela Browning: My understanding—I do not claim to be an expert—is that, should the patient subsequently lose capacity during that period, there need be no delay. A section 62 treatment would be given, so the Minister need not worry that there would be a long delay for somebody who had moved from having capacity to losing it in the interim.

Tim Boswell: That is a helpful intervention. There is an obligation on those with care of the patient constantly to assess the capacity available. That is a somewhat infinite process, but those with care must have their minds open to any deterioration or change that could affect the patient’s situation. It is sensible to consider the process clinically, and it is legally important to have it as a safeguard for the parties involved. It need not be unduly onerous or vexatious to include that requirement, and I hope that the Minister will consider the matter with care.

Rosie Winterton: Welcome back to the Chair, Mr. Cook. I would like to explain a little more about the background to clauses 34 and 35, which I hope will give some reassurance to the hon. Members for Tiverton and Honiton and for Daventry. As they have said, those clauses insert new provisions in legislation to allow for the treatment of supervised community patients, both in the community and on recall to hospital. They will also insert important new safeguards, including the SOAD, which will allow all SCT patients to have a review of their treatment in the community and in the event of a recall to hospital.
The SOAD will provide that review through a new part 4A certificate, irrespective of whether patients have the capacity to consent, or not, to treatment and irrespective of where that treatment is given. That measure allows treatment to continue in situations such as that mentioned by the hon. Member for Daventry, in which capacity may fluctuate, and treatment can also be provided should the patient be recalled to hospital.
It is important to be clear about the fact that treatment in the community cannot be given without consent to any patient who has the capacity to consent to or refuse treatment. A patient who is refusing treatment cannot be given that treatment by force against their will. If a patient refused at the outset to accept treatment as part of their community treatment order, that CTO could not be made because it would not be effective in practice. That goes back to the debate that we had last week. Understanding the way in which CTOs would operate is extremely important to the debate. Patients must accept that the CTO is part of their treatment and that it does not work if somebody says, “But I don’t accept that I need to take my medication.” It is an important principle in CTOs that there is that understanding and acceptance of the conditions.

Tim Boswell: On CTOs, it is fair to recall that, although it is necessary for the patient to consent in practice—the Minister suggested that that would limit the number of cases in which they could be applied—it is a kind of consent under duress, because the alternative may well be to continue in hospital.
On clauses 34 and 35, there could be circumstances in which a patient recovers capacity fully. If that happens, and as a consequence the patient withdraws their consent, how will the doctor know, or how will they respond to that position, because it would then be unethical to continue to treat the patient, as well as unlawful, unless a different provision were sought?

Rosie Winterton: As I said last week, if a patient said that they no longer accepted that they needed to take their medication, it would be up to the clinician to decide whether, at that point, recall to hospital was appropriate. That does not mean that they have to recall a patient to hospital, but they must consider whether it is appropriate. For example, if the patient’s point is that their medication is having side effects that they find it difficult to cope with, the clinician may wish to suggest a different dosage. It does not mean that, if a patient says that they do not want to continue with the treatment, recall is automatic, but the provision gives the clinician the option at that point.
What worries me about the new clause is that it would remove an important safeguard, introduced by clauses 34 and 35, ensuring that all patients in the community have their medication independently reviewed. It would also prevent clinicians from treating patients without delay on recall to hospital, and would therefore jeopardise the effectiveness of supervised community treatment, as well as inevitably causing unnecessary disruption to patients’ lives. There are also some technical flaws, but I will not go into those.
The aim of the part 4A certificate requirement is to ensure that all SCT patients have had a second doctor review of the appropriateness of their plan of treatment, wherever that treatment is to be given, whether in hospital or in the community. We want all patients to benefit from that safeguard, whether or not they have the capacity to consent to that treatment. That is crucial for community patients, who are not in a hospital environment where treatment can be reviewed and monitored intensively. Obviously, community patients’ contact with the clinical team would be less frequent, so the SOAD review offers protection to ensure that the treatment that they receive is, and continues to be, right for them. I find it difficult to understand why Opposition Members would want to take that protection away from patients.
It is important that the SOAD is able to approve treatment of the patient in the event of recall to hospital, as well as in the community. The SOAD does not have to address the issue of treatment on recall to hospital—it is not a requirement—but can do that if it is appropriate. Of course, it is always possible to reassess a patient on recall to hospital.
I am advised by psychiatrists, including those who perform the SOAD function, that when discussing CTOs we might be talking about well-known cases where a prediction of treatment in relapse can be fairly accurate. It is perfectly appropriate to look forward and make such judgments.

Angela Browning: I agree with the Minister that it is appropriate to look forward and make such judgments if everything is equal to when the initial assessment was made. However, a significant change of circumstances could have taken place. It is not just a question of the patient coming off medication because they do not want to cope with the adverse side effects any more, although that is a common problem. I raised with the Minister the possibility of a situation in which a physical disability has intervened. How does she accommodate such a change of circumstances?

Rosie Winterton: As I said, the SOAD does not have to address the issue of recall to hospital unless it is appropriate. That might be a circumstance in which a patient’s not taking their medication is the cause of a relapse, and so it is important that they can receive that treatment immediately on returning to hospital. The new clause, tabled by the hon. Member for Tiverton and Honiton, would prevent the patient from being treated quickly on returning to hospital. However, as things stand, a reassessment of the patient’s needs can be made at that time—there is absolutely no problem in doing so. Indeed, if a treatment becomes inappropriate, the doctor will not be expected to administer it simply because the SOAD has said that it might be appropriate. Such clinical flexibility is allowed.

Tim Boswell: I assure the Minister that we have no intention of removing any of the safeguards and we welcome the progress that has been made with our involvement.
The point that puzzles me in a simple and lay way is why it should be thought that the SOAD provides a single gateway for all circumstances. If there is a material change of circumstances of a medical nature, the person responsible for treating the patient should not be obliged to refer. As I understand it, the Minister is saying that it will be possible to refer to the SOAD as a matter of good practice—we can hardly argue with that. However, it is not quite clear to me why it will not be required, or expected, that that should happen.

Rosie Winterton: As I said, the SOAD will provide an independent review of treatment in the community so that the patient has a safeguard. That does not always tie the hands of the clinician. If recall to hospital becomes appropriate, it is important that the clinician has the flexibility to be able to administer treatment very quickly. That does not mean that it will have to be administered if it is not appropriate at that time. It is simply a matter of ensuring that there is a protection for patients in the community—in the form of an independent review—and an ability to treat them quickly on their return to hospital to save going through the whole process of assessment again, which would put the patient in a worse position. I understand that this is quite a complicated issue, but I hope that with those reassurances, Opposition Members will not press the new clause.

John Pugh: I want to widen the debate a little and test my understanding of what clauses 34 and 35 involve. I think that we all accept that the history of compulsory medication in this country has not been a happy one for anybody, let alone the mentally ill. Some treatments have been futile, some have looked downright punitive and some have been experimental. The first use of LSD in this country was on mental health patients in Kent. There is also an issue with unacknowledged side effects, which have often been identified many years after patients have been taking particular drugs persistently. There is an acceptance that prescription in mental health services is a fine art; the dosage must be correct in order to have the required effect. I welcome and accept the Government’s concept of an independent review of medication as and when it is applied under CTO conditions.
 As I understand it, the Mental Health Act 1983 laid limitations on compulsory medication for detained patients. I am not saying that my understanding is immune from any kind of challenge from the Minister; in fact I would welcome a challenge when I go wrong. The general presumption, even in that legislation, is that medication would be applied with consent. In fact, most patients detained as in-patients are happy to consent to their medication and to get some benefit from it. There was always a possibility under the 1983 Act of medication being administered without consent, if the patient did not understand and it was therapeutically necessary. The Act also contains other exceptions that allowed a fairly wide range of discretion: doctors could intervene if it was a life-saving issue and it was necessary to prevent a worsening in the patient’s condition, and also in order to prevent direct harm by the patient to themselves, as long as the medication process itself was not irreversible. In emergencies, medication could be used as long as there was not an irreversible effect.
With regard to the provisions in the legislation that apply to CTOs, the Mental Health Alliance said:
“The Bill proposals will result in very complex law relating to consent for treatment of community patients which will be challenging for many practitioners to understand.”
I have to say that it is challenging not only for practitioners, but for legislators. Therefore, I want to test my understanding by putting to the Minister what seems to be involved and the problems that I think are contained within it.
The general assumption is that if a person is on a CTO, they will consent to treatment, subject to the overriding conditions laid down by the Mental Capacity Act 2005. We are talking only about the possibility of medicating patients without their consent on their recall. It seems that intervention and/or medication administered with force—one might consider a scenario where someone has an injection in order to sedate them or control them—can occur under CTO conditions if an adult lacks capacity, if a child under 16 lacks competence and, mysteriously, if the patient does not object to the use of force. I found the latter in the notes on the Bill, rather than the actual Bill. One wonders how that scenario could evolve and one assumes that there must be some distinction implicit in the legislation between the patient’s standing will and the will that they have on a particular occasion, such as during a psychotic episode. That, I assume, is the reason that provision is included, as it seems rather perplexing that one would want to use force if a patient had consented.
It would appear that medication can be forced on a patient in circumstances such as those set out in the 1983 Act; under a CTO, when the treatment is regarded as immediately necessary. If a medical officer judges, regardless of the consent conditions, that something needs to be done which is regarded as immediately necessary, under a CTO, would that judgment simply override whatever conditions are already in place?
Further to what we have just debated, I accept that there is an argument to be had about the effect on the system and the patient of an advanced medical directive. We have had a similar, almost parallel argument with regard to advanced patient directives. There are pluses and minuses that may need further investigation, but at this stage I would like the Minister merely to respond to my queries to test my understanding of the legislation. If medication is to be forced on a patient while on a CTO—not on recall—in what circumstances will that take place?

Angela Browning: Despite the Minister’s explanation, I still have some concerns. I assume that a rapid deterioration would count as an emergency and, thus, a need for immediate intervention. Section 62 would authorise emergency treatment, so patients will not be put at risk when the nature of their emergency is concerned with their mental health. The emergency could be of a non-mental health nature, but that does not seem to be taken account of by the fact that the SOAD is authorising treatment down the track without being aware of the circumstances.
 I should like the Minister to compare such issues with that of detained patients. When patients are detained, they receive a SOAD when they no longer consent or when they lose capacity. However, that treatment is not available to CTO patients under the proposal. There is a disparity between the treatment and the response that an in-patient can expect and what a person in the community can expect. We must bear it in mind that CTOs are something of an experiment that we have covered in earlier parts of the Bill. We hope that, with CTOs, the Minister would at least be giving recognition at the same level of intervention as would be given to someone who was detained, bearing it in mind that those patients would have been detained previously and are now in the community. The comparison of safeguards is therefore important. The SOAD is a safeguard. That is its purpose.

Tim Boswell: Does my hon. Friend agree that it is an important safeguard for the doctor to have a second opinion? While a challenge would not remove the possibility of litigation about professional negligence, it would nevertheless reduce it. As with the Mental Capacity Act 2005, a lot of what is being done is properly to safeguard the position of those who do things for people as well as those to whom they are done.

Angela Browning: That is obvious. My hon. Friend is right that such a safeguard is important. We are talking primarily about safeguarding the patient, but equally we must have regard to the professionals who take responsibility for the patients. If things go pear-shaped, all too often it is the person who last saw the patient who takes the responsibility.

Rosie Winterton: If Opposition Members accept that the measure is an important safeguard, why are they trying to abolish it with the new clause?

Angela Browning: We are not trying to abolish it. Initially, we proposed the abolition of clause 34 and replacing it with our amendment. Unfortunately, it was not selected, which is why I am speaking to new clause 14. If the Minister reads it, she will see that it might simplify matters somewhat, but it certainly would not remove safeguards. In fact, the SOAD is a safeguard. If matters are just left to the responsible clinician down the track, there would be no real SOAD safeguard in the Minister’s proposal.

Rosie Winterton: The new clause would take away the independent review for patients with capacity to consent. Perhaps that is unintentional, but that is what it would do.
 With regard to forcible treatment in a patient’s home, I reassure the Committee that there will be no forced treatment of patients who have capacity or competence to consent, but who do not do so while subject to a CTO. If forcible treatment is necessary, the patient will be recalled to hospital. Forcible treatment outside hospital for patients who lack capacity or competence to consent cannot be given except when the responsible clinician has no reason to believe that such a patient objects to the treatment, and as long as that does not conflict with an advance decision, one made by someone who has been given a lasting power of attorney, or a deputy appointed by the Court of Protection.
Some of the issues are about practicality. For example, if a person required an injection but had to be held down to get it, the injection could be administered as long as they were not objecting—[Interruption.] If, say, a muscle spasm in the arm would react, force may be applied. We are talking about limited circumstances. As under the Mental Capacity Act 2005, if a person gave any indication of objection, the treatment would not be given. Practicalities will determine the limited circumstances in which a clinician would have to take such action, but they are very unlikely.

Tim Boswell: If I may follow the Minister, I am increasingly coming to the view that we should after all have left the safeguards in common law because of the lack of flexibility and the extreme circumstances that she described. While that is not my considered view—I like the Act, as she does—will she consider that there is no intention on the Opposition side to remove any of the safeguards that she is seeking to introduce? I have said that again and again. However, given that the complexity of the issue, will she at least undertake to review the situation? Circumstances might change, and a clinician who has made a judgment in good faith and has had that supported by a second doctor, might be obliged or encouraged, not least for their own protection, to go back and review their initial decision. We are not seeking to preclude appropriate treatment, let alone emergency treatment, but there is a potential difficulty if clinical approval that has been given in one position is not transferable when circumstances change.

Rosie Winterton: I am sorry to contradict the hon. Gentleman once again, but the effect of the new clause would be to remove the safeguards for people who have capacity. I understand that that is not what he intends, but I will ask the Committee to reject new clause 14, because it would remove the safeguards.
 I conclude by saying again that force may be used to administer treatment in an emergency——for example, to save a patient’s life. In all such emergency cases, force will have to be a proportionate response to the seriousness of the harm that might be caused to the patient. It is a similar approach to that taken by the Mental Capacity Act 2005—force has to be proportionate and used in a way that helps rather than harms the patient.

John Pugh: The Minister may be able to help me. Clearly, when life and death are at stake, it is overriding that somebody must do something. She suggests that force may be used in those circumstances, and that the clinician will not have to make legal moves in order to use that force should he judge it necessary.
Was the Minister sketching another scenario in which a clinician who judges that medication is to be administered against the will of a patient who is on a CTO that stipulates that they should consent must make a new legal move to put in place the requirements laid down for in-patients? In other words, there are circumstances in which needs must: clinicians must do what they have to do to save lives. That is an overriding imperative in circumstances in which action is immediately necessary. However, at the start, the Minister seemed to be saying that one could move from a scenario in which a patient was consenting to treatment on a CTO to a different one, which was nevertheless not quite the same as sectioning, in which some legal move was required prior to a change in the patient’s clinical treatment.

Rosie Winterton: The Government want to ensure that a patient on a CTO has their treatment independently reviewed and that they have access to treatment very quickly on recall to hospital. The problem with the Opposition’s new clause is that it removes the ability of the SOAD to authorise treatment independently, which means that, on recall to hospital, the patient would have to go through the legal process again, and that is what we are objecting to. It may be that that is unintentional. Perhaps it is a probing new clause. I am afraid that I have to ask the Committee to reject the amendments.

Angela Browning: I do not think that we are going to press the amendments to a vote, but I urge the Minister to reflect and, if necessary, discuss again the points that we have made.

Question put and agreed to.

Clause 34 ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.

Clause 36

References

Tim Loughton: I beg to move amendment No. 58, page 35, line 35, leave out ‘16’ and insert ‘18’.
This is a rather simpler amendment than the last one, and enormously less long. It is about the referral to mental health review tribunals. Again, it reflects our concern about how children and young people are treated in the Bill. We are trying to ensure that safeguards are put in place for all children under 18. Its purpose is to ensure that children under 18 are reviewed at least annually by a tribunal. At present, only children under 16 are automatically entitled to an annual review. We think that they should have at least an annual review given the sensitivity of their position. After all we are talking about very vulnerable children. Children under 18 but over 16 who have no one to look after their interests, such as unaccompanied asylum seekers or those whose parents do not understand the mental health system, might not be reviewed for three years. Surely, that is far too long in the life of a young person.
The point of the amendment is simple. It reinforces the fact that those under 18 are regarded in law as children, and it would safeguard their rights. Although we are not talking about an enormous number of children each year, surely it is a worthwhile safeguard to ensure that children under 18 do not have to wait for up to three years, as they could in some cases, for a review of their position——of their continued sectioning or other treatment——by the mental health review tribunal.

Rosie Winterton: Clause 36 provides a safeguard for patients who do not use their right to apply to the tribunal. It ensures that even when patients have not applied themselves, hospital managers will automatically refer them to the tribunal after a certain period. All patients under 16 who do not apply to the tribunal, other than under section 2, get referred after the first six months of their detention. If a year passes without a tribunal, then they will be referred again by the hospital managers. The amendment seeks to extend the annual referral to patients under the age of 18.
I sympathise with the intentions behind the amendment. I would like to look at the potential financial and particularly operational implications. I agree with the hon. Member for East Worthing and Shoreham that it is important to consider very carefully the best ways to ensure that children’s rights are properly safeguarded. I would like to consider the amendment further, alongside the commitment made by my noble Friend Baroness Ashton in the other place. That commitment was that no child under 18 should appear before the tribunal without having had some input from a child and adolescent mental health specialist. It is appropriate to put both considerations together. I invite the hon. Gentleman to withdraw the amendment so that I can consider it further.

Tim Boswell: Would the Minister also consider that, if children under 18 are to appear before the tribunal, they should be adequately supported in what is bound to be a difficult process? They should not feel it to be any more difficult than it has to be. The Minister will be familiar with the many changes to young people giving evidence. Will she at least ensure that such vulnerable young people do not feel threatened by the tribunal beyond the bare requirements in their own interests?

Rosie Winterton: I certainly would not want children to feel threatened by the tribunal. Of course I will look carefully at what the hon. Gentleman said.

Tim Loughton: That was short and sweet, but we appear to have made some progress. Perhaps we should keep all our amendments as short as that and we might get rather further than we have done in the rest of the Bill.
I am grateful to the Minister for saying that she sympathises with the intention and that her support is conditional upon further investigation into the financial and operational implications. We do not think that many children are involved, but it is difficult to tell because the figures are not collected. Potentially, we are not talking about a big cost implication at all, if any. If it can be achieved operationally, then I am happy to withdraw the amendment on the basis that she will come back, having considered it, and perhaps give us good news on Report. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clauses 37 and 38 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 39 ordered to stand part of the Bill.

Clause 40

Conditionally discharged patients subject to limitation directions

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss the following:
New clause 17—Removal to hospital of persons serving sentences of imprisonment——
‘(1) The 1983 Act is amended as follows.
(2) In section 47 (Removal to hospital of persons serving sentences of imprisonment, etc) in subsection (1) leave out from “Secretary of State” to the end of the subsection and insert—
“must by warrant direct that that person be removed and detained in such hospital as may be specified in the direction: and a direction under this section shall be known as “a transfer direction”.’.

Tim Loughton: New clause 17 has a little more detail than the last amendment and deals with the criminal justice system and the duty to transfer prisoners. Its purpose is to place duties on the Home Secretary about referral of people in the criminal justice system to a hospital environment.
 Section 47 of the Mental Health Act 1983 allows the Home Secretary to order the transfer of a sentenced prisoner to hospital. Any such decision is made by the Home Secretary, based on reports from two doctors. We are concerned that prisoners with mental health problems are still not getting the specialist medical treatment they need. We are all only too well aware of the enormous problems with mental illness among the growing——and record——prison population. The hon. Member for Slough (Fiona Mactaggart) responded to a question about the state of mental illness in our prisons just over a year ago, when she was the Parliamentary Under-Secretary of State at the Home Office. She referred to what she termed the most comprehensive national assessment to estimate the incidence of metal illness in prison, published by the Office for National Statistics (ONS) in 1997. The survey indicated that 90 per cent. of prisoners have at least one mental health disorder, including personality disorder, psychosis, neurosis, alcohol misuse and drug dependence. The majority of that number have common mental health problems, such as depression and anxiety, much of which may be related to their imprisonment rather than being a contributing factor to it.
 A smaller, but again much larger than average, proportion of those people have more severe problems, such as schizophrenia or some form of personality disorder. We have discussed personality disorder problems and I mentioned the dangerous severe personality disorder prison population. I know some of the experiments that are going on in the pilot scheme in Broadmoor, which I visited, where prisoners with severe personality disorder have been transferred for a different sort of treatment and confinement.
Those figures are slightly out of date but none of us would expect there to have been a drastic improvement in the mental health state of the prison population. The annual report of the chief inspector of prisons in 2002-03 estimated that 41 per cent. of prisoners in health care centres should have been in secure NHS accommodation. It was discovered in 2004 that, at any one time, at least 40 prisoners assessed as needing a transfer to hospital had been waiting over three months for it to take place.
There is a large divide between the health care that individuals can receive in the community and what can be achieved in the prisons, owing to the difference in priority and limited resources. Surely, prisons are not the place for people with serious mental health problems as they cannot provide appropriate levels of care. I know other hon. Members have raised the subject on the Floor of the House. My hon. Friend the Member for Wealden (Charles Hendry) introduced a private Member’s Bill last year on the mental health of the prison population. Many members of the Mental Health Alliance are concerned that section 47 of the 1983 Act has not proved to be an effective mechanism for transferring prisoners with mental health problems to a hospital for specialist care.
In line with the recommendation of the joint parliamentary scrutiny committee, many people believe that, where two responsible clinicians agree that the transfer to a hospital is needed, the Home Secretary should be under a duty to order his or her transfer. That may help with the burgeoning prison population. Given that the prison population has gone over 80,000 and the Government and Home Secretary are now having to look at emergency provisions such as floating prisons and so forth, taking some of those people for whom it would be more appropriate to be in some form of mental health accommodation out of the prison population could come as something of a bonus to the Home Secretary, whoever he or she may be in a few weeks’ time.

Chris Bryant: Has the hon. Member had any conversations with his hon. Friend the Member for Monmouth (David T.C. Davies), who thinks that the prison population should be doubled?

Tim Loughton: I have not and I do not think that is relevant to the amendment we are talking about. I saw an interview in the weekend newspapers with my hon. Friend the Member for Monmouth, who was wearing a special constable’s uniform.

Rosie Winterton: The hon. Gentleman was wearing it.

Tim Loughton: I was not wearing a special constable’s uniform. I will talk to the Minister about that afterwards.
 The proposal was put forward by the pre-legislative scrutiny Committee. There is a genuine problem. The problem, as we were told in the pre-legislative scrutiny Committee, is that corrections and community corrections staff lack the training and expertise adequately to identify mental health issues in prisons. In Committee, we were told by the Department of Health that there are plans to implement a mental health first aid training package to provide corrections staff with the skills to recognise symptoms and provide initial assistance and referrals, and that higher-level training is being considered for key staff, as there are few specialist mental health staff in the prison system.
 In responding to the new clause, will the Minister comment on what progress has been made on that? I think that we are all aware that the state of mental health provision, and of health provision generally—[Interruption.] I am sorry if I am boring the hon. Member for Stockport, but it is an important subject. There are many people who are not receiving the treatment they need, and whose condition is stagnating and worsening in prison environments where appropriate care is not available. I note the Government’s earlier references to appropriate treatment. Appropriate treatment is not available in too many prison scenarios.

Angela Browning: Does my hon. Friend agree that when people who have been through the criminal justice system await the courts’ determination as to disposal, the courts often face difficulties finding not only prison places but appropriate places in mental health secure units? When the Minister replies, will she assist my hon. Friend by giving us the latest figures and any advice that she has received from the judiciary regarding its concerns about having to make inappropriate disposals due to the lack of facilities?

Tim Loughton: My hon. Friend makes a pertinent point, and I know that the Minister will be keen to give us those figures straight away. On that basis, I shall sit down.

Rosie Winterton: I agree absolutely that we need to ensure that proper mental health facilities are available in prisons for prisoners who require treatment, which is why we have created a number of new prison in-reach teams. It is also important that we have an appropriate mechanism for transferring prisoners.
I refer Opposition Members back to our discussions about treatability. One issue, particularly for women in prison, is that the treatability test has got in the way. As Jean Corston said in her report, there are far too many women with personality disorders in prison who are not being treated, which is why she welcomed the changes that the Government want to make to the Act to ensure that treatment is available, particularly to the women whom she highlighted.
I recently asked for a review of both high security and medium security facilities. It has not yet been published, but I assure Opposition Members that due to the number of beds in the NHS and those commissioned in the independent sector, I am quite satisfied that provision is adequate, particularly for medium security prisoners.
Sometimes the issue is how to handle transfers from prison. The new clause would address that, as it concerns the treatment of offenders who have been sentenced to prison and then need to be transferred to hospital for specialist treatment of a mental disorder. The new clause is particularly concerned with the Secretary of State’s power to direct the transfer of prisoners to hospital, which will occur when the Home Secretary receives reports from two doctors that a prisoner suffers from a mental disorder that makes it appropriate to detain the prisoner in hospital for medical treatment. The Bill provides for appropriate medical treatment for that prisoner.
The Secretary of State’s current power to direct transfer to hospital is discretionary. Once a prison has notified the Secretary of State that a prisoner requires treatment in a mental hospital in which he may be detained, he is under an expedient duty to take steps to obtain medical evidence. If medical advice says that a transfer should be made, the Secretary of State must take reasonable steps to do so, but, importantly, in taking those steps the discretion enables the Home Secretary to take account of the situations of hospitals to which a direction might be made. It does not oblige him to transfer a prisoner to a hospital regardless of whether appropriate care or facilities are available there, or whether the hospital has a bed available, or whether it is able or willing to provide sufficient security for the public and other patients or for its staff. 
The Opposition’s new clause would remove the Secretary of State’s discretion and oblige him to direct regardless of particular circumstances. I completely understand that, when a prisoner is suffering from a mental disorder making it appropriate for him to be detained in hospital, there is a need to act as soon as is practicable. However, I cannot see the value in directing prisoners’ admission to a hospital that has no facilities to provide the treatment that they might need or that cannot offer the security needed to enable a prisoner to be treated in conditions of safety. The problem with the new clause is that it holds out the possibility of both happening.

Tim Boswell: I am always slightly suspicious when the Minister gets into caricature territory; my hon. Friend the Member for East Worthing and Shoreham may attend to that later. Can the Minister make something clear for the record? She has now twice referred to the Home Secretary while also referring, variously, to the Secretary of State. Although I may be wrong, I had understood that under the new arrangements for the division of the Home Office, the responsibility in question will devolve to a Minister or Secretary of State for Justice and not to the Home Secretary. It is important that we get that point clear.

Rosie Winterton: That is a fair point.
I want to emphasise some important security questions here. Obviously, many prisoners would be in an extremely vulnerable situation, but it is also true that others may be extremely dangerous. We could be talking about people who have committed quite serious crimes; any prisoners in such circumstances would need to be transferred to hospitals with an appropriate level of security.
I completely understand that the spirit of the new clause in seeking to ensure that people get treated quickly. That is why, as I said, we now have 102 NHS mental health in-reach teams in prisons. This year, for the first time, all prisoners should have access to those services. Some 360 more whole-time equivalent staff are employed on mental health in-reach provision, which actually exceeded the NHS plan for 300 to be in post by the end of 2004. More than £60,000 has also been invested over three years on mental health awareness. The hon. Member for East Worthing and Shoreham talked about basic training in that area for prison staff, which has commenced and should be reaching 20 per cent. almost as we speak.

Tim Loughton: Before the Minister rattles off all this stuff, can I take her back to the safety angle? I am sure that she will be able to give me the figures, but is it not the case that fewer people have escaped from high security mental hospitals than from prisons? Her contention that a mental hospital would in some way be less secure than a prison for potentially dangerous people therefore does not hold. Is that not right?

Rosie Winterton: No, because I was talking not necessarily about escapes, but about security levels for staff and other patients in respect of someone who is potentially quite dangerous. Security is needed not only for the individual, but for staff, visitors and other patients.

Tim Loughton: If we are not discussing escapes, would not the Minister agree that the degree of specialism and skill that is available in high security mental hospitals to deal with someone who might be dangerous either to himself or to other patients is much better and more appropriate than in prisons? The reasons are the ones that have been stated, which are connected with shortage of skills and facilities. Whether the issue is escape, safety of inmates, public safety or the safety of the individual, there is better provision in hospitals than in prisons, so the Minister’s argument does not stand up.

Rosie Winterton: I do not necessarily agree. The whole point of the new clause is that it would remove any discretion to consider the type of hospital that might be appropriate. That is exactly the problem with it, and that is why I have said that retaining the discretion is important.
 It might reassure the Committee to know that there has been a significant decrease in the number of people who wait more than 12 weeks for a transfer from prison. In the quarter ending December 2006, 38 prisoners had been waiting for that period, compared with a figure of 62 for the quarter ending June 2005. The figure for December 2006 is obviously still too high, but I hope that it indicates that the changes that we have made are working.
The new clause seeks in a sense to use legislative powers to direct the allocation of NHS resources, and could almost result in more favourable treatment of prisoners, because hospitals would be obliged to accept them. That would put the issue in a rather different perspective—one that would not necessarily be favoured by the public.
I understand that the Opposition are trying to highlight the need for people to be transferred quickly from prison to hospital, if transfer is appropriate, but there are some very good reasons why removing discretion from the Secretary of State would not be appropriate, among which are matters of public safety. I hope that the hon. Member for East Worthing and Shoreham will therefore withdraw the amendment.

Frank Cook: Order. Hon. Members on both sides are making references to an amendment. We are not discussing an amendment; we are discussing the matter of clause stand part.

Tim Loughton: I was under the impression that we were discussing new clause 17, Mr. Cook.

Frank Cook: The hon. Gentleman has permission to discuss that new clause, but the Question before us is whether clause 40 should stand part of the Bill.

Tim Loughton: So on the basis that new clause 17 is grouped with the matter of clause stand part, I have leave to discuss it.

Frank Cook: Please do.

Tim Loughton: Thank you, Mr. Cook. I was a bit confused by what the Minister said, and I think that she got a bit confused too. Having said that the issue was not escapes, which endanger public safety, but behaviour and risk in prisons, where the public are not present, she ended up by saying that it was all about public safety. It seems to be a rather circular argument.
Having reeled off a load of supposed improvements to facilities in prisons and mental hospitals, the Minister then said that actually there might be a problem if such facilities are not available in a hospital to which the Secretary of State for Justice is obliged to make a transfer. Either things are getting better, in which case the services are available, or they are not, in which case we must do something about it, but at the end of the day it is about the health and well-being of patients who have serious mental health problems that are not properly catered for in prisons. They are in the logjam that exists in the prison system at the moment.
 I do not take the Minister’s point about removing all the Secretary of State’s discretion. The new clause would place a duty on the Secretary of State. If given proper, investigated medical advice that a person should not be in a prison but a hospital environment, surely the Secretary of State for Justice should pay close attention to that advice. He or she will not be expert enough to give opinions on the person’s medical state. Surely there are few if any grounds on which the Secretary of State for Justice should challenge a medical opinion given by a person legitimately entitled to give it. Why, all of a sudden, is the Secretary of State for Justice as competent to give medical opinions as a highly qualified Secretary of State for Health would be?

Rosie Winterton: But the new clause would specifically remove the following words:
“the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do”.
It would remove the reference to the public interest and replace it with a provision that the Secretary of State
“must by warrant direct that that person be removed and detained in such hospital as may be specified in the direction”.
There is no discretion whatever. The new clause would, in particular, remove the reference to the public interest, which is the discretion.

Tim Loughton: It would remove the discretion to judge whether that individual has a problem, because the Secretary of State for Justice is not medically qualified, competent or expected to judge somebody’s medical condition. That is why we have experts to do so. That is what the legislation is all about.
As for the discretion, the Secretary of State
“must by warrant direct that that person be removed and detained in such hospital as may be specified in the direction”.
My understanding is that the provision does not say exactly which hospital. It would be inappropriate to dump a prisoner in a mental hospital that is ill-equipped, unsuitably insecure or otherwise deemed inappropriate.

Tim Boswell: Does my hon. Friend agree that the Minister’s reservations about the new clause might well reflect the fact that, despite her protestations about the adequacy or improvement of mental health services for prisoners, there might be no such hospital in the category to which a particular prisoner could be referred? In other words, there might be a covert agenda whereby the Secretary of State for Justice is aware that the system is failing a person’s needs and does not wish to be obliged to make a warrant for their redirection to hospital.

Tim Loughton: This is a probing new clause, because it clearly recognises the problems that the Minister acknowledged when she claimed that improvements were occurring in transfers from prison to hospital. I do not see any incentive, other than to clear some prison space for people whom it is more appropriate to be place there, for the Secretary of State for Justice to do something about it. Does the Minister have figures for the number of people for whom there was medical recommendation for transferral to a hospital environment and about whom the Home Secretary, as it would be at the time, said no for whatever reason, because he had discretion to do so? What reasons would have been given that those people should not be transferred? If the reason was that the alternative was less appropriate, as the right hon. Lady suggested, were the decisions reviewed after some weeks or months when a more appropriate placing was available in a high security mental hospital, for example?
As it stands, the Secretary of State for Justice can say no and does not have to do anything about it. Should there not at the very least be some conditions whereby if he says no, he must then reconsider the decision after several months? If the medical determination is still the same, there should be a greater incentive or compulsion for him to ensure that an appropriate hospital space can be found by reference to the Secretary of State for Health, whose system clearly is not providing the services that are required for that different form of patient.

Rosie Winterton: If the medical advice is that the Secretary of State recommends transfer, he does not question that advice. The discretionary bit is where the transfer is and that he can wait until an appropriate hospital is available. As I said, the numbers waiting for more than three months have decreased by about 33 per cent., so the discretion is about where and when, not the medical opinion in the first place. I hope that I have been helpful.

Tim Loughton: I was not challenging that, but it is pointless unless the Secretary of State for Justice has to do something about it, such as decide whether to challenge the medical opinion or not to challenge it and say that a suitable place was not available. The consequences would be the same, as a person in prison, who should not be in prison, should be in hospital. That is the key point. What is the incentive for an appropriate space to be found as soon as possible? There does not seem to be any comeback.
The Minister gave us some indicative figures of how delay has been reduced when she referred to 12 weeks. Does that cover everyone? Is everyone automatically obliged to be transferred if the medical opinion is that they should be transferred, even if it takes three, six, nine or 12 months? Will that recommendation still be live? I do not know how the system works at the moment, but my reading of the mechanism suggests that there is a potential problem with having no incentive to get on with it.
I come back to the Minister’s point about public safety, and appropriate security and skill levels in a hospital. Surely, if she has confidence in the services that her Department is offering to mental health patients and those in secure mental hospitals who happen to have come through the criminal justice system as well, she should not be making the case that, in some way, they might be better off in a prison than a health environment. That is the clear implication of what she is arguing, especially by praying in aid public safety, which does not apply in prisons because there are no members of the public there.

Angela Browning: Let us suppose that it is recognised that there is a need for someone with a custodial sentence to be referred to a hospital placement. When that does not take place, there is the obvious problem of managing the person in the prison. I represent a Devon consistency and I have visited Dartmoor prison from time to time. It is my limited experience that mental health patients, which is how I describe them, are often confined to the medical wing on a semi-permanent basis because that is the most containable place in which to manage them.
If that referral is never made, however, the prison has to deal with the patient on an ongoing basis. When that person is discharged from prison, they could be sent back into the community with no proper contact with mental health services. They may have contact with the probation service, but not mental health services.

Tim Loughton: My hon. Friend is right. That is not in anyone’s interests. It is not in the interests of the prison, which has its hospital wings jammed up with long-term mental health sufferers, or of other prisoners who, in severe cases, may be at some risk from those people. In addition, the medical qualifications or training of the prison staff may not be sufficient to deal with such prisoners compared with those in a higher security hospital, which clearly provides the appropriate treatment.
We have raised some legitimate concerns about the mechanics of the transfer from prison to hospital. I am a little muddled by the Minister’s logic. I do not think that the amendments are as constrictive as she is suggesting in terms of taking away all of the discretion of the Home Secretary—or the Secretary of State for Justice as it is now. The Minister may want to reflect on some of our points.

John Pugh: Surely the weakness of the Government’s position as it stands is that it does not preclude the indefinite absence or postponement of treatment if the case is sufficiently severe for there to be a public interest. For example, nobody could find a good hospital for Ronnie Cray, so he was left to fester in prison. Also, in the case of terrorists, the Government would never find a public interest case for hospitalising such people even if hospitalisation is medically recommended. Therefore, the weakness of the system is that it allows the indefinite absence and postponement of treatment without any review of that decision.

Clause 43

Places of safety

Tim Loughton: I beg to move amendment No. 7, in clause 43, page 41, line 6, at end add—
‘(4) In Section 135(6) for the words from “means” to the end of that subsection substitute—
“(a) (i) residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948 (c.29),
(ii) a hospital as defined by this Act,
(iii) an independent hospital or care home for mentally disordered persons,
(iv) any other suitable place the occupier of which is willing temporarily to receive the patient or, if, in the circumstances of the case it is impracticable to use any of these places,
(b) a police station.”.
(5) In Section 136 (Mentally disordered persons found in public places) of the 1983 Act after subsection (2) insert—
“(3) Where a police station is used as the place of safety the person may not be detained there for a period longer than 24 hours.”.’.
It is me again, Mr. Cook. The amendment to clause 43 is slightly longer and it deals with the subject of places of safety. I know that a number of hon. Members have expressed concerns about the matter in the past. The amendment is to section 136 of the Mental Health Act 1983. We want to define places of safety with particular reference to the use of police stations, which are apparently being used under the definitions of the Bill far too often and inappropriately. 
 So the purpose of the amendment is to change the definition of a “place of safety”, to ensure that as far as possible it should be not a police cell but a therapeutic environment. When a police station is used as a place of safety, because nothing else is available, the patient must be transferred to a therapeutic environment, which is more appropriate, within 24 hours.
I have some experience of such a situation. I had a surgery case last year involving a constituent’s son-in-law, who had had a severe psychotic episode. He had no previous experience or record of any serious mental illness. He got involved in a quite bizarre incident requiring a number of armed police and was taken into custody. No one was hurt, but he clearly had—for want of a better word—flipped. He was taken to the custody suite of the police station, where he stayed for several days.
He was not transferred to a hospital environment. He was not dealt with properly at the police station. His condition worsened severely while he was in custody. The reason why he was not transferred was that the reviewing clinician—from the Maudsley hospital in south London—was on holiday and there was no one covering. So, for completely unacceptable reasons, the son-in-law of my constituent was forced to stay in that police cell for a number of days—I cannot remember how many, but clearly too many—while his condition worsened. It was highly inappropriate and he plainly should have been removed to a hospital as soon as possible, so that he could start receiving the medical care denied him for some while.

Angela Browning: In evidence, the Committee received several reports flagging up the use of police cells, particularly for younger people. We debated earlier in Committee appropriate placements for young people, particularly adolescents, especially those between 16 and 18. More often than not, because there is no appropriate hospital placement for them, they end up being accommodated in police cells, for fairly long periods, which is quite inappropriate.

Tim Loughton: My hon. Friend is absolutely right. She might be referring particularly to submission MH57, from Penny Stafford. She said:
“CAMHS services do not usually provide any facilities for a ‘Place of Safety’ for children subject to s.136 of the Mental Health Act, and even in those areas where there is appropriate ‘Place of Safety’ provision in the local adult mental health services, these hospital based S136 Suites do not accept children or young people under the age of 18, so instead these vulnerable distressed youngsters are held in police custody suites, an even more inappropriate setting for them.”
She refers to a “key recommendation” of a report published by the Mental Health Act Commission, of which she was a member, that a
“protocol should be put in place to allow for children and adolescents subject to s.136 to be taken to an appropriate place of safety within a hospital setting and to be assessed by a specialist in child and adolescent psychiatry.”
We would agree with that. That is the point of the amendment.

Charles Walker: Something troubled me immensely in Broxbourne when I was out with the police once. We were called to a domestic incident, which involved a 15-year-old child, who was having some form of—for want of a better word— episode. The child was clearly mentally disturbed, but was led away by the police to a police station. That worried me immensely. I do not know if I have any answers, but it was so obvious to me that she was mentally ill and it seemed a great sadness and shame that she was taken the police station when she should probably have gone to a hospital.

Tim Loughton: I think that all of us could relate an experience such as that among our constituents. We might be talking about young people who do not have a long experience of mental illness, for whom psychotic events begin to happen, for whatever reason. It must be enormously intimidating and frightening for such people when they are rounded up by the police, perhaps handcuffed, and taken to a police station for something that was caused by an illness. They might be dumped in a police cell as a minor, on their own, when they are confused and ill. That will not help the child, therapeutically, for those initial hours or days in which they find themselves—inappropriately—in a police cell.
Police officers have a duty under section 136 of the Mental Health Act 1983 to take
“a person who appears...to be suffering from mental disorder and to be in immediate need of care or control”
from a public place
“to a place of safety”.
While such places are defined in the Act as
“a hospital...police station... care home...or any other suitable place”,
in the majority of cases, a police cell will be used. A person can be held under the power for up to 72 hours, although there are cases, such as that of my constituent, when that is not adhered to. The detention should be such that the person can be assessed by mental health professionals.
The Mental Health Alliance has referred to new research by the Independent Police Complaints Commission on the use of police stations as a place of safety. The commission’s initial findings state:
“During 2005/06 approximately 11,500 people were detained in police custody under”
section 136. It also states:
“This figure is likely to be an underestimate due to the way that police detentions are recorded”.
Secondly, the commission found that
“Rates of section 136 detentions varied widely across forces”
ranging
“from 0 to 28 detentions per 1,000 people in custody.”
There is a postcode lottery in operation so there is clearly something wrong. Is the lottery to do with different forces operating under different procedures and protocols? Are the different rates caused by vast differences in the facilities available to police forces? That is one of the biggest causes for concern.
Previous research has indicated that police cells are used on around 80 per cent. of occasions when section 136 powers are invoked. Police cells are the norm, not the exception. Most of us would agree, and clinicians say, that police cells are not the most appropriate place, or so much as an appropriate place, for people detained under section 136 to be taken.
The person detained under section 136 need not have committed any offence, but simply to have behaved in a way that has given the impression that they are mentally ill and a danger to themselves or others, so there is a degree of discretion for the police who take people into custody. A police cell is not a therapeutic environment for someone experiencing mental health problems. Being taken into custody may delay the provision of effective treatment and exacerbate the illness, which is exactly what happened in the case of my constituent. The use of police cells as a place of safety also has significant resource implications for police custody facilities. The police have little training or expertise in looking after people with severe mental health problems. Given all the other pressures on the police, this is another problem that they do not need.
Police station staff are, I fear, rarely trained to deal with people who are mentally ill. Home Office circular 66/90, which is in a memorandum to accompany the 1983 Act, and the joint Home Office and Department of Health review of health and social services for mentally disordered offenders both suggested that police stations should rarely if ever be used to detain people under section 136. The NSF on mental health states that hospitals should be used in preference to police stations, and the current code of practice states that police cells should generally be used.
 The issue is of particular relevance to black and minority ethnic communities, especially African and Caribbean communities. The rates of use of section 136 orders are disproportionately high for those groups. Two surveys have been undertaken, one each in Islington and Camden. The Islington survey found that no fewer than 41 per cent. of section 136 detentions were of black people, when that group makes up only 12 per cent. of the population. Similar figures were found in Camden. Section 136 powers are being used disproportionately to detain black and ethnic minority patients, reflecting the disparities, problems and discrimination that happens across the mental health service.
Nick Hardwick, the co-chairman of the Independent Police Complaints Commission has estimated that 50 per cent. of deaths in police custody have involved people with mental health problems. He stated:
“Whatever a police cell is, it is not a place of safety for people with mental illness.”
The IPCC gave evidence on the 2004 Bill and said that, 
“the legislation makes no attempt to limit the circumstances in which [the use of detention orders through police cells] happens only to wholly exceptional occasions.”
The Police Federation of England and Wales supports the removal of police stations from the legal definition of a place of safety altogether, as does the Association of Chief Police Officers. The Mental Health Act Commission has repeatedly stated in its biannual report, as many other stakeholders have mentioned, that police stations should not be regarded as places of safety.
The Government have agreed to consider monitoring the use of police cells as places of safety. I am not quite sure how that will happen but I am sure the Minister will enlighten us in detail as soon as I sit down with a progress report.
 Although welcoming the new power included in the Bill to allow transfers between places of safety, the Police Federation, the Association of Chief Police Officers and the Independent Police Complaints Commission have told the Mental Health Alliance that, unless this is accompanied by other safeguards to ensure that patients are transferred quickly, then the overuse of police cells as a place of safety is likely to continue.
 In particular, there is a fear that, with the new power to transfer, PCTs will be less likely to prioritise a search for a hospital bed for section 136 patients because they know that they will be able to transfer them at a later date. This could have the unintended consequence of increasing the use of police cells for mentally disordered patients. That is the case that they are making.
 There was some debate on this in the House of Lords. I know that the Government were concerned that the wording of the original amendment was overly restrictive. Amendment No. 7 has taken on board the Government’s concerns. Amendment No. 7 provides that police cells should be used only if “it is impracticable” to use a therapeutic environment. The amendment is supported by the Police Federation, the Association of Chief Police Officers and the Independent Police Complaints Commission.
So there is a great deal of weight behind the amendment. It addresses a problem that is happening all too often and one that we are all aware of. The Minister and other members of the Committee share the view that it should not be happening, but we are discussing how we should prevent it from happening. The amendment will send out a serious message about the undesirability and inappropriateness of this form of detention. It will also act as a serious spur to reconfigure services so that police cells are used only as a fallback position and not as the position of preference, as happens in about 80 per cent. of cases. As such, I hope that the Minister will take the amendment seriously.

John Pugh: I want to add just a few comments, as the hon. Member for East Worthing and Shoreham has put the case exhaustively and has covered most of the angles.
I have some difficulty in equating police stations with places of safety full stop because of the things that happen in police stations from time to time. It is understandable that people who have mental health crises will occasionally end up in police stations. It is also perfectly comprehensible that most policemen are not trained therapists and therefore find such problems difficult to deal with, and that the police station is not an ideal therapeutic environment in any sense. Police stations are useful facilities for all sorts of purposes. The stark reality is that they are now used as prisons and used far more than the Government wish them to be. They could clearly be overused as places of safety for people who should be elsewhere.
 The amendment is unashamedly designed to drive up standards. One can almost anticipate the Minister’s response, which will be something along the lines of, “Yes, it’s good to have higher standards, but hey, we’re going to lose flexibility and if there is no place of safety we may end up releasing people straight out on to the streets.” That is all well and good, but it is indistinguishable from an argument for lower standards; someone arguing for lower standards would make exactly the same point.
The amendment’s cutting edge is the restriction to 24 hours. If the Minister has a difficulty with that, and if 24 hours is thought to be too short a period because places might not always be available in that time scale, we could adopt a more sophisticated amendment whereby the 24-hour provision would be the norm, with a requirement for exceptional permission to be sought if a longer period were required. Such amendments are an attempt to drive standards up and deal with an unjustified ill. Surely the Minister can warm to that.

Charles Walker: I made a brief intervention earlier, but I think that the incident that I described deserves more than an intervention, so I hope that the Minister will not mind if I expand on it. About this time last year, I spent a morning with the police, during which there was a call-out to a “domestic” in my constituency. When we arrived the situation was unclear; there was a hell of a row, with plates breaking and cutlery being thrown. It sounded as though some enormous person was out of control.

Ian Gibson: Just like at the Walkers’.

Charles Walker: Well, occasionally the Walker children get out of control. The police entered the home and their performance was outstanding from beginning to end despite their not being trained to deal with such situations. After about half an hour, they emerged with a tiny girl of about 14 or 15 years who could not have been more than 5 foot nothing. She was crying softly between two enormous policemen. Clearly, as I said earlier, she was mentally disturbed. Indeed, she was well known to our mental health services, the Hertfordshire Partnership NHS Trust, and has had a long history of engagement with doctors and nurses in the trust. I spoke to her parents and they were clearly at their wits’ end, but I did not feel that they really understood mental illness—the symptoms had not been explained to them.
I asked the police what would happen to the young person, and they told me that she would be taken to the local police station to be detained and charged. At the risk of sounding repetitive, I point out that it seemed totally wrong that someone who was clearly mentally ill and who was known to the mental health services should spend a period—maybe the entire day or longer—in a police station, to be charged for an episode that within a day or two she would, I discovered, not even recall.
I do not have the answer, but I am sure that the Minister has heard hundreds of such stories. If we could improve such situations, I and many other people would be extremely pleased.

Rosie Winterton: I should say first that the stories Opposition Members have told are all tragic. I completely understand why people feel that the situation needs addressing, and I agree. That is one reason why the Government introduced the amendments in the other place, so that transfer would be permitted. Transfer was one of the real problems that was highlighted at my meeting with the Police Federation, whose representatives said that they would certainly welcome the inclusion in the Bill of scope for transfer from one place to another. Everyone agrees that police stations are absolutely not the right place in which to detain someone who appears to be suffering a mental disorder, and that hospital facilities are likely to be more suitable. However, the hon. Member for East Worthing and Shoreham touched on the truth, which is that we must recognise the current limited availability of adequate place of safety facilities other than police stations. The availability also varies from area to area, and we are trying to put that right.

James Duddridge: Although I agree that police stations are inappropriate as places of safety, may I ask whether any moves are being made to create specialisms in conurbations such as London, Manchester or Birmingham? Staff at particular police stations could be trained in dealing with such mental health patients, so that they could be temporarily detained there, rather than in an area with no awareness of mental health issues or specialisms.

Rosie Winterton: There is a host of steps that we can take. An important one is not always touched on: we need to look more carefully and at why for some people the first point of contact might be the police, as opposed to the mental health services. How some people end up in police stations, as opposed to being taken to somewhere provided by the NHS, is quite an issue. Hence the importance of allowing the transfer between police stations and other places of safety, because too many people were going through the police system instead of always going through the mental health services.
The hon. Member for Southport anticipated me, but I hope to reassure him that this approach is correct. Coming back to the point raised by the hon. Member for East Worthing and Shoreham and his constituent’s five-day wait, the maximum period of detention in a police station is 72 hours, so he might wish to take that up. I should emphasise that that 72 hours, which I am sure many people would say is too long, is an upper limit. Recently published evidence, emerging from a study being undertaken by the Independent Police Complaints Commission, suggests that the average amount of time in police custody under section 136 of the Act is 10 hours and that the vast majority of detainees leave police custody within 18 hours. That is reassuring, but it also makes it clear that a small number of people have been detained in police cells for longer than 24 hours. The amendment would make that impossible.
As we said in the other place, the issue is about whether we feel that imposing statutory restrictions is the way to address the understandable concerns that the amendment seeks to tackle. We believe that the right way forward is to limit the use of police stations by facilitating the good practice that we know occurs in some places. The hon. Member for East Worthing and Shoreham said that it was interesting how the figures are very low in some parts of the country, but in others they seem to be greater.

Charles Walker: On a connected point, what sort of access to psychiatric services does someone in a police cell or station have? Do they have access to review by a trained clinician? What happens when they leave? Do they go home?

Rosie Winterton: Basically, the individual will be waiting for an assessment. Once the assessment is made, a decision is taken on what to do with the patient. We therefore need the assessment to be made as quickly as possible so that, if necessary, proper treatment can commence. It is the issue of getting the assessment that the hon. Gentleman is trying to address.

Charles Walker: On a point of interest, would that assessment involve the person’s clinician who had been supporting them prior to their admission to the police station?

Rosie Winterton: Yes, a clinician and social worker would be involved in the decision to detain somebody under the Mental Health Act or to provide other care.
 As I have said, by allocating approximately £42 million in capital spending, we are trying to improve the NHS mental health estate to ensure that proper places of safety are available. We are putting in a further £58 million this year. We have specifically asked people to look at the issue of places of safety. As the hon. Member for East Worthing and Shoreham said, the local protocols that are in place are often what is important. The Police Federation made the point that if we can ensure close co-operation between the police and the health authorities, we could see real changes in the use of police cells as places of safety. That is why we introduced the amendments in the other place that, in effect, allow a patient to be transferred elsewhere. Currently, if someone ends up in a police cell, that is where they stay. The Government amendment made in Lords allows a transfer to take place.
We want to reinforce that approach by strengthening the guidance in the code of practice The current code states that police stations should not generally be used. In the revised code, we want to stress that police stations should be used only as a last resort: for example, only if nowhere more suitable is immediately available, and even then, only if such use is compatible with local agreements on the use of places of safety. We want to ensure that local protocols are in place and to stress the points that I have just made in the revised code.
We will consult very widely on the revised code. We will involve representatives of the police, including the Police Federation, in the drafting of the guidance. I understand that similar arrangements will be made in Wales. The National Institute of Mental Health in England is working with the Association of Chief Police Officers on the development of guidance on joint working between police and health services in dealing with people with a mental disorder. I know that that is general, but it is an important matter. Getting the process right at local level and understanding how each other’s work can take place and be improved is the best and most appropriate way forward.
I hope that that reassurance, combined with guidance on moving people from one place of safety to another more appropriate one, will encourage the hon. Member for East Worthing and Shoreham to withdraw the amendment.

Tim Loughton: This has been a useful debate. I am particularly pleased with the Minister’s assurances about consultation in reference to the code of conduct. That will probably be the swiftest way of bringing about improvement. In particular, it will address the deserts of best practice that appear to exist and ensure that protocols that work at the moment work everywhere. I see no reason why that should not happen. Promoting a local agreement is the best way to proceed, so that there is mutual benefit and trust and a good relationship between clinicians, police, the Prison Service, social workers and all the other agencies involved.
Our amendment stipulates an upper time limit of 24 hours. That should not be a problem, because the Minister has said that the emerging IPPC research indicates that the average stay is 10 hours. Having taken her assurances that a lot is happening—discussions with the police, improvements to the code of conduct, and so on—in relation to the provision of services, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 ordered to stand part of the Bill.

Clauses 44 to 46 ordered to stand part of the Bill.

Clause 47

Mental Capacity Act 2005: deprivation of liberty

Rosie Winterton: I beg to move amendment No. 47, in clause 47, page 44, line 19, after ‘paragraph’, insert ‘42(2)(b),’.

Frank Cook: With this it will be convenient to discuss Government amendments Nos. 48 and 53.

Rosie Winterton: The amendments have been tabled in response to concerns that were expressed in the other place. They will amend clause 47 and schedules 6 and 8 to the Bill.
Clause 47 will amend the Mental Capacity Act 2005 to introduce safeguards to protect the rights of a person who is deprived of their liberty. The new deprivation of liberty safeguards are necessary for people who lack the capacity to consent to arrangements made for their care. The measure is being introduced in response to the European Court of Human Rights 2004 judgment in the case of HL v. UK, which is commonly referred to as the Bournewood judgment. The Court identified the need for protection from arbitrary deprivation of liberty for people who have a mental disorder and who lack capacity to consent to arrangements made for their care, but who are not detained under the 1983 Act.
We considered the judgment and decided that the Bill needs to include formalised procedures covering who may propose admission, for what reasons and according to what criteria, and how those should be assessed. Limits must be placed on how long the deprivation of liberty may continue before a review, which will include a clinical reassessment that says that a person still has a mental disorder. There must be a right to have the lawfulness of the deprivation of liberty decided speedily by a court and for a representative who can offer a challenge on a person’s behalf to be appointed.
The proposed safeguards will address those matters. They will permit the deprivation of liberty only in circumstances in which that is necessary in a person’s own best interests and to protect them from harm, and when that cannot be achieved in a less restrictive manner.
The proposals will give vulnerable people the protections that they currently lack. The safeguards will give additional protection to those in a hospital or care home in circumstances that deprive them of liberty. The law will clarify for hospitals, care homes, service users and their families the circumstances in which a person may be lawfully deprived of their liberty. That will enable hospitals and care homes to ensure that they are acting lawfully.
The cornerstone of the new arrangements is that the deprivation of liberty will be lawful only if it is specifically permitted by a formal authorisation concerning a particular individual in a particular care home or hospital, or by order of the Court of Protection. An authorisation may be given only if six criteria—called “qualifying requirements” in the Bill—are met, and it will last for up to 12 months. Except for a short period in urgent cases, all authorisations must be given by the relevant authority on the basis of the decisions of a properly qualified assessor. The schedule calls such authorisations “standard authorisations”. The job of granting standard authorisations falls to “supervisory bodies”. For care homes, the supervisory body granting the authorisation would be the relevant local authority, for hospitals, it would be the PCT, and in Wales, the National Assembly.
The amendments to the Mental Capacity Act have been welcomed by all those who were involved with that legislation, not least the hon. Member for Tiverton and Honiton, who has taken great interest in this matter. Our amendments introduce a power to make regulations to reduce the maximum length of standard deprivation of liberty authorisations, as agreed in the other place, in response to concerns that authorisations could be granted for too long a period.
Before I come to the detail, I would like to explain our policy on the duration of authorisations. Our aim, which I am sure the whole Committee shares, is that if deprivation of liberty needs to be authorised, it should be for the shortest time possible. We will make that very clear in the Mental Capacity Act code of practice and in training facilities. In the other place, Baroness Ashton committed to strengthening that point in the code, and officials are working on a revised version, which will be subject to consultation. That is why we are setting the authorisation period on a case-by-case basis according to the best interests assessor’s recommendation.
 The assessor will look at the person’s circumstances and the likelihood of change and make a recommendation based on their best interests. There are cases in which it will be perfectly reasonable to grant an authorisation for 12 months, and others in which the period will be much shorter because it may become possible, through rehabilitation and support, for the person to be cared for at home.
If a change in circumstances means that the deprivation of liberty should end, the hospital or care home is required to request a review. The relevant person or the representative who is appointed to support them can also trigger a review or apply to the Court of Protection at any time. Those safeguards mean that if a deprivation of liberty is no longer needed, it can and will be ended. We will provide information and support to families and carers to ensure that they can effectively help their loved ones to make use of the safeguards.
I am confident that the measures will deliver our aim of ensuring that the deprivation of liberty does not continue for longer than is necessary for the person’s protection. Concern was expressed in the other place that authorisations would have a default duration of 12 months, but I am confident that that will not happen. I reiterate that we will make it very clear in the code of practice that authorisations for 12 months should be recommended only if the assessor is confident that the person’s circumstances are unlikely to change in that time. However, to allay those concerns, we committed in the other place to take certain powers. Amendment No. 48 will give us the power in England, and Welsh Ministers in Wales, to reduce the maximum authorisation period if monitoring of the operation of safeguards provides convincing evidence that it is necessary to do so.
Amendments Nos. 47 and 53 provide that the regulations, if made, would be debated in both Houses of Parliament and in the National Assembly for Wales. I hope that the power will not be needed, but it is prudent to include it in the legislation. I therefore invite the Committee to support the amendments.

Angela Browning: Seeking to comply with the judgment of the European Court of Human Rights is probably one of the most important ways for the Government to use the Mental Capacity Act. There was considerable debate in the scrutiny Committee on both that legislation and on the draft Bill, and although I welcome the Government’s decision finally to use the Act, I still have some concerns that I would like to flag up to the Minister today. It is important that we get this part of the Bill absolutely right, because it deals with depriving a very complex and vulnerable group of people of their liberty outwith the Mental Health Act 1983. The Bournewood case was, as we know, about lack of protection under that Act.
The Minister gave some welcome clarification about the duration requirement for authorising deprivation of liberty. She wrote to us all on 17 April outlining some of the amendments that would be moved in Committee in this area, most of which she addressed just now. However, I remain concerned about the rather vague language used on time scales—language that will be enshrined in the code of practice. It is of course right that the duration should be the absolute minimum that is necessary, and should be assessed on a case-by-case basis. Actual practice, however, could well be based on available resources rather than on the best interests of the patient.
How, therefore, does the Minister calculate the additional resources that will be required for the procedures associated with this part of the legislative reform, which implements Bournewood judgment compliance? There are significant resource implications that I believe have not been addressed and that, of themselves, might skew the determinations. In due course I shall mention some of the lawyers’ concerns on that, with particular regard to the concerns on marrying up the Mental Capacity Act and the Mental Health Act that have been expressed by the lawyer who handled the Bournewood case.
I realise that the Minister and her officials have had a difficult task since the appearance of the judgment, so I am not complaining. They had to decide which Act was the appropriate one to consider, and I think that they have chosen the right one. Now, however, we are reaching the detail of implementation, and it is important not to be satisfied just with putting something on the statue book in the belief that that is an end of the matter. Will the Minister therefore consider the safeguards that might be needed on time factors, notwithstanding her proposed amendments and the contents of the code of practice?
Sometimes there are advantages to lightly worded recommendations, because they give flexibility in areas where it is needed, but we need to be cognisant of certain matters that have arisen—including some that have arisen even since the Bournewood judgment. Not least among them is the issue of defining liberty and deprivation of liberty, which remains a matter of some obscurity, as we know from a recent court case involving Surrey county council. That is because such cases now involve people deprived of their liberty not only in hospitals, but in wider care in the community and in residential and nursing homes. Has a person been deprived of liberty when they are not free to go out of the door, or when they are not free to go out of the door unless accompanied by a suitable relative or friend? The case involving Surrey county council concerned an elderly person with dementia in a residential setting. If such people are trying constantly to get out of the front door, is their being contained within the building to be interpreted as an indication that they are being deprived of their liberty?
Those who looked at the Bournewood case when it reached the House of Lords were clear that, had HL tried to leave the Bournewood hospital, it would have clearly been wrong to have let him go because, in his own interests, it was better that he be contained within the building while he was undergoing treatment. That was the determination of the Lords. However, the European Court found in favour of HL after hearing his lawyers’ arguments.
Will the Minister consider the definition of deprivation of liberty, because several references have been during our proceedings to the opportunities for lawyers when there is lack of clarity and a grey area that allows different interpretations? Because the right hon. Lady has not actually defined deprivation of liberty in the Bill or, for that matter, in the code of practice, it may well lead to further legal challenges that the legal profession might welcome. That should be something that the Minister should reconsider during the final considerations on formulating the code of practice or the Bill.
I certainly welcome the Minister’s keeping her word and the Government’s pledges in Committee in another place. The six qualifying requirements to deprive someone of their liberty are sensible and well drafted. There is an age requirement, the mental health requirement, the mental capacity requirement, the best interests requirement, the eligibility requirement and the no refusals requirement. We are still at a stage when for some people the Mental Health Act will be applied, and for others the Mental Capacity Act will be applied. I want clarification from the right hon. Lady. If, under the initial assessment, it is appropriate to apply the amendments to the Mental Capacity Act, how will changes in circumstance be regulated so that patients who might move between the scopes of the two different Acts can be assured of the protections that they need? I am still not 100 per cent. sure that such provisions have been correctly drafted because there is a rather vague definition of deprivation of liberty and, under the Mental Capacity Act, we now seem to have embraced a wider group of people.
I refer the Minister to a bundle of documents that were provided to the Committee. The Government supplied an excellent guide, “The Bournewood Safeguards”. I am looking at the easy-read version.

Rosie Winterton: It is quite the best.

Angela Browning: It is very good. I commend the Government on how they issue such guides. The document explains who will usually use the Bournewood safeguards—in other words, who will come within the scope of clause 47, to which the Minister has tabled the amendments. They include
“people who have serious learning disabilities”,
which goes without saying, but then we come to a group that covers the Surrey county council case, which is
“older people with mental illnesses like dementia”.
That group is not small and I suggest to the Minister that it is growing. We know from demographics that we have an increasingly elderly population, although such conditions do not exclusively affect the elderly. People in that group might be detained against their liberty. It is a pretty wide and large group, and it is going to expand. I return to the question of resources. How will the Minister ensure that adequate resources are available to implement the safeguards that she is building into the clause? My suspicion is that the Government have underestimated how many people will be dealt with under the clause. If resources are not available, the safeguards will not prevent people from falling through the net.
 I mentioned earlier the concern about the definition of deprivation of liberty and the question of the same individual moving between the regimes of the Mental Health Act and the Mental Capacity Act, but I should also like to draw attention to the difficulties identified by the legal profession, which has taken a close interest in the Bill. We benefited from MH55, a paper submitted by Robert Robinson, a solicitor with Scott-Moncrieff, Harbour and Sinclair in London, who pursued the Bournewood case. He quotes the conclusion of the Joint Committee on Human Rights, which commented unfavourably on the guidance. It stated:
“We consider that deprivation of liberty is a less flexible and elusive concept than might be thought from the draft illustrative guidance. Since we posed this question to the Government”—
clearly, the Minister or her officials have had some discussion with lawyers on the subject—
“Munby J. has delivered judgment in J.E. and D.E. v. Surrey County Council and E.W., holding that the crucial issue in determining whether there is a deprivation of liberty is not so much whether the person’s freedom within the institutional setting is curtailed, but rather whether or not the person is free to leave.”
Such areas are complex and grey, but while they remain so, and as further case law emerges that only compounds the problem of definition, it seems that while seeking to fill the Bournewood gap, we are considering a much wider group of people than was alluded to in the original Bournewood case, shocking as it was. I met H.L., an adult in his 40s, after he left the Bournewood hospital. It must be said that for many years, he was an in-patient in that hospital, so his condition had quite a long track record, but none the less there were complications. I shall not digress too much into the Bournewood case, but it triggered the need to change the law, as it eventually went before the European Court of Human Rights and was found to involve a contravention of article 5 of the convention.
Given that the lawyers still feel that as more case law is made, an even wider group of people will be encompassed by the measures, clarity in the definition of deprivation of liberty is essential. The Minister must also examine the resource implications. I have alluded to just one group of people, purely because a court case involved somebody from it. The Government seem to think, judging by the documentation that they have put out, including the easy-read version of the Bournewood judgment, that we are talking about a small, discrete group, whereas the lawyers seem to be saying that many more people will be subject to this legislation than the Government are indicating.
Not only does that have implications for the deprivation of liberty—a wider group of people will be involved—but there are important resource implications. The Minister may not able to give specific answers today on the issues that I have raised, but before the page is closed on the Bill and it becomes an Act of Parliament, she should, yet again, be prepared to discuss this, face to face, with the lawyers. They have had a great involvement with the case and clearly know it well, so if they have ongoing concerns, it is important that the Minister is made aware of them.
I am not a lawyer, so I am giving the layman’s version of what the lawyers have sent me and the rest of the Committee. I hope that the Minister understands that this is an important part of getting things right. There is no party political divide, because we all want her to get this right, but I hope that before coming back to the House on Report, she will consider that this part of the Bill should be examined carefully and she will give an audience to those lawyers who continue to have concerns.

Rosie Winterton: It may be helpful if I give an example of how the process might work. Let us consider a patient who is in his 70s and is physically fit and strong, but who has advanced dementia. He has been cared for at home by his wife, who has been struggling to cope with his behaviour. He is admitted to a care home in an emergency after his wife falls and breaks a hip. Understandably, the upheaval of the move has meant that he is extremely disturbed. Restrictions are needed to keep him calm and safe, and the family are asked not to take him out of the care home because he becomes so disorientated and distressed. The care home considers this to amount to a deprivation of liberty and applies for an authorisation.
In those circumstances, the local authority would arrange for an assessment to be carried out. Let us suppose that the psychiatrist who has been seeing the gentleman as an out-patient confirms the diagnosis of mental disorder and assesses the likely impact of the care proposed and the capacity of Peter—that is what I shall call him—to consent. A social worker with extensive experience in the care of the elderly, who has no connection with the gentleman’s case, is appointed to make an independent assessment of what is in Peter’s best interests. The outcome of the assessment is that deprivation of liberty is authorised for three months and Peter’s son is appointed to act as his representative.
Let us then suppose that after nine weeks, Peter’s wife comes back home, much recovered, and wants her husband to return to live with her. The son requests a review of the authorisation, and the best interests assessor, after speaking to Peter, his wife, their son and the care home, recommends that he should return home. The authorisation would be terminated, and the gentleman would return home, with the support of carers provided morning and evening.
I understand the desire of the hon. Member for Tiverton and Honiton to define the deprivation of liberty, but it is almost impossible to give a definition that could be used in every case. In the code of practice we have tried to identify factors that the courts have used to determine whether a person is deprived of liberty. Some of the factors that we have given are:
“Restraint was used, including sedation, to admit a person who was resisting;
Professionals exercised complete and effective control over care and movement for a significant period;
Professionals exercised control over assessments, treatment, contacts and residence”,
if a decision has been taken that the person would be
“prevented from leaving if they made a meaningful attempt to do so;
A request by carers for the person to be discharged to their care was refused”—
that was particularly relevant to the case with which the hon. Lady is familiar—
“The person was unable to maintain social contacts because of restrictions placed on access to other people;
The person lost autonomy because they were under continuous supervision and control.”
It is right that there is an ability to examine each individual to see whether it is considered that what is happening is a deprivation of liberty. It is difficult for us to consider every case in which someone is deprived, because it often depends on the individual and what they consider to be a deprivation of their liberty as well as the views of those around them.

Madeleine Moon: There is a situation that might well arise in the circumstances that my right hon. Friend the Minister described. Would it be a deprivation of liberty if it were agreed that the gentleman could go home, and his family wanted him home but could not have him without the provision of the care package of two calls a day that she described, and the local authority was unable to implement it? In the scenario that was described, that is the hitch—a local authority’s ability to put in the care package. I would welcome clarification of that.

Rosie Winterton: But I believe that that is why the best interests assessor would come into it. The assessor would have to balance what was happening in the care home with what it would be possible to achieve in the home. One may well be dependent upon the other, so that the authorisation would be terminated if it were felt that the appropriate packages were in place. My officials are nodding encouragingly, so I assume that that is right.

Angela Browning: I hope that the Minister’s officials will continue to nod encouragingly. I am genuinely trying to be helpful, but I have reservations because the lawyers have raised them with us. I wish to return to the case of an elderly person with dementia, perhaps wandering around in a residential setting and trying to leave. In the case that I mentioned, JE and DE v. Surrey County Council and EW, with which I am sure the Minister’s officials will be familiar, Munby J. referred in his judgment to
“the necessary objective element in a deprivation of liberty”.
That was a judge determining his own interpretation of a deprivation of liberty, and he said in his summing up:
“In the type of case with which I am here concerned, the key factor is whether the person is, or is not, free to leave”.
If that is how the courts are determining it, I wonder why the Minister cannot be a little more clear about her definition.

Rosie Winterton: Because, as the hon. Lady has pointed out, the courts in that case looked at the individual’s circumstances. We have tried in the code of practice to say, “These are the types of things that the courts have looked at.” If we said in legislation, “These are the only things that can amount to a deprivation of liberty,” we could be open to some of the challenges that brought about the provision in the first place. We do not want to try to stipulate that and so exclude people who might feel, or whose carers or family might feel, that there had been a deprivation of liberty because we had specifically set that out in legislation. It would be almost impossible for us not to lay ourselves open to even more legal challenges. Having said that, I would be more than happy for the audience with the lawyers, suggested by the hon. Lady, to take place—not least because it sounds very grand. However, I may defer to my officials on that issue so that they can discuss with the relevant lawyers in the Department whether such an audience would be appropriate.
I turn briefly to the relevant figures. We have estimated that about 21,000 assessments will need to be made in the first year; after that, we estimate that there will be about 5,000 per year. We are discussing that with the relevant local authorities and will keep the issue under review.
Given those reassurances, I hope that the Committee will accept the Government’s amendments, which, as I say, are meant to be safeguards on an important issue.

Angela Browning: I appreciate the Minister’s offer to consider the audience and shall do my best to pass that on. However, will she comment on my point about the need for clarity between patients who might move from one Act to the next?

Rosie Winterton: As I said, we try to ensure that patients have as much information as possible about their rights and the safeguards that are in one or other of the Acts. Obviously, different criteria apply to each, and we shall try to make that as clear as possible.

Amendment agreed to.

Clause 47, as amended, ordered to stand part of the Bill.
Further consideration adjourned.—[Claire Ward.]

Adjourned accordingly at three minutes to One o'clock till this day at half-past Four o'clock.